CHAPTER 12. PROVISIONS GENERALLY APPLICABLE TO WATER RIGHTS
WATER CODE
TITLE 2. WATER ADMINISTRATION
SUBTITLE B. WATER RIGHTS
CHAPTER 12. PROVISIONS GENERALLY APPLICABLE TO WATER RIGHTS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 12.001. DEFINITIONS. The definitions contained in
Subchapter A, Chapter 11 of this code apply to this chapter.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
SUBCHAPTER B. GENERAL POWERS AND DUTIES RELATING TO WATER RIGHTS
Sec. 12.011. PERMIT APPLICATIONS. The commission shall receive,
administer, and act on all applications for permits and permit
amendments:
(1) to appropriate public water for beneficial use or storage;
or
(2) to construct works for the impoundment, storage, diversion,
or transportation of public water.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.031, eff.
Sept. 1, 1985.
Sec. 12.012. EVALUATION OF OUTSTANDING PERMITS. The commission
shall actively and continually evaluate outstanding permits and
certified filings and shall carry out measures to cancel wholly
or partially the certified filings and permits that are subject
to cancellation.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.031, eff.
Sept. 1, 1985.
Sec. 12.013. RATE-FIXING POWER. (a) The commission shall fix
reasonable rates for the furnishing of raw or treated water for
any purpose mentioned in Chapter 11 or 12 of this code.
(b) The term "political subdivision" when used in this section
means incorporated cities, towns or villages, counties, river
authorities, water districts, and other special purpose
districts.
(c) The commission in reviewing and fixing reasonable rates for
furnishing water under this section may use any reasonable basis
for fixing rates as may be determined by the commission to be
appropriate under the circumstances of the case being reviewed;
provided, however, the commission may not fix a rate which a
political subdivision may charge for furnishing water which is
less than the amount required to meet the debt service and bond
coverage requirements of that political subdivision's outstanding
debt.
(d) The commission's jurisdiction under this section relating to
incorporated cities, towns, or villages shall be limited to water
furnished by such city, town, or village to another political
subdivision on a wholesale basis.
(e) The commission may establish interim rates and compel
continuing service during the pendency of any rate proceeding.
(f) The commission may order a refund or assess additional
charges from the date a petition for rate review is received by
the commission of the difference between the rate actually
charged and the rate fixed by the commission, plus interest at
the statutory rate.
(g) No action or proceeding commenced prior to January 1, 1977,
before the Texas Water Rights Commission shall be affected by the
enactment of this section.
(h) Nothing herein contained shall affect the jurisdiction of
the Public Utility Commission.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 12.014. USE OF COMMISSION SURVEYS; POLICY. The commission
shall make use of surveys, studies, and investigations conducted
by the staff of the commission in order to ascertain the
character of the principal requirements of the district regional
division of the watershed areas of the state for beneficial uses
of water, to the end that distribution of the right to take and
use state water may be more equitably administered in the public
interest, that privileges granted for recognized uses may be
economically coordinated so as to achieve the maximum of public
value from the state's water resources, and that the distinct
regional necessities for water control and conservation and for
control of harmful floods may be recognized.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.031, eff.
Sept. 1, 1985.
Sec. 12.015. POWER TO CONDEMN WORKS. (a) The commission may
condemn existing works if their existence or operation may, in
the judgment of the commission, become a public menace or
dangerous to life and property.
(b) In all cases of proposed condemnation, the commission shall
notify the interested party of the contemplated action and shall
specify a time for him to appear and be heard.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 12.016. POWER TO INSPECT. The executive director or his
authorized agent may inspect any impoundment, diversion, or
distribution works during construction to determine whether or
not they are being constructed in a safe manner and whether or
not they are being constructed according to the order of the
commission.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
Sec. 12.017. POWER TO ENTER LAND. Any member or employee of the
commission may enter any person's land, natural waterway, or
artificial waterway for the purpose of making an investigation
that would, in the judgment of the executive director, assist the
commission in the discharge of its duties.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.031, eff.
Sept. 1, 1985.
SUBCHAPTER C. PROJECTS
Sec. 12.051. FEDERAL PROJECTS. (a) In this section:
(1) "Federal project" means an engineering undertaking or work
to construct, enlarge, or extend a dam, lake, reservoir, or other
water-storage or flood-control work or a drainage, reclamation,
or canalization undertaking or any combination of these financed
in whole or in part with funds of the United States.
(2) "Engineering report" means the plans, data, profiles, maps,
estimates, and drawings prepared in connection with a federal
project.
(3) "Federal agency" means the Corps of Engineers of the United
States Army, the Bureau of Reclamation of the Department of
Interior, the Soil Conservation Service of the Department of
Agriculture, the United States Section of the International
Boundary and Water Commission, or any other agency of the United
States, the function of which includes the conservation,
development, retardation by impounding, control, or study of the
water resources of Texas or the United States.
(b) When the governor receives an engineering report submitted
by a federal agency seeking the governor's approval of a federal
project, he shall immediately forward the report to the board for
its study concerning the feasibility of the federal project.
(c) The board shall hold a public hearing to receive the views
of persons and groups who might be affected by the proposed
federal project. The board shall publish notice of the time,
date, place, nature, and purpose of the public hearing once each
week for two consecutive weeks before the date stated in the
notice in a newspaper having general circulation in the section
of the state where the federal project is to be located or the
work done.
(d) After hearing all the evidence both for and against approval
of the federal project, the board shall enter its order approving
or disapproving the feasibility of the federal project, and the
order shall include the board's reasons for approval or
disapproval.
(e) In determining feasibility, the board shall consider, among
other relevant factors:
(1) the effect of the federal project on water users on the
stream as certified by the commission;
(2) the public interest to be served;
(3) the development of damsites to the optimum potential for
water conservation;
(4) the integration of the federal project with other water
conservation activities;
(5) the protection of the state's interests in its water
resources; and
(6) the engineering practicality of the federal project,
including cost of construction, operation, and maintenance.
(f) The board shall forward to the governor a certified copy of
its order. The board's finding that the federal project is either
feasible or not feasible is final, and the governor shall notify
the federal agency that the federal project has been either
approved or disapproved.
(g) The provisions of this section do not apply to the state
soil conservation board as long as that board is designated by
the governor as the authorized state agency having supervisory
responsibility to approve or disapprove of projects designed to
effectuate watershed-protection and flood-prevention programs
initiated in cooperation with the United States Department of
Agriculture.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.032, eff.
Sept. 1, 1985; Acts 1987, 70th Leg., ch. 20, Sec. 1, eff. Sept.
1, 1987.
Sec. 12.052. DAM SAFETY. (a) The commission shall make and
enforce rules and orders and shall perform all other acts
necessary to provide for the safe construction, maintenance,
repair, and removal of dams located in this state.
(b) Rules and orders made by the commission shall be made after
proper notice and hearing as provided in the rules of the
commission.
(c) If the owner of a dam that is required to be constructed,
reconstructed, repaired, or removed in order to comply with the
rules and orders promulgated under Subsection (a) of this section
wilfully fails or refuses to comply within the 30-day period
following the date of the commission's final, nonappealable order
to do so or if a person wilfully fails to comply with any rule or
other order issued by the commission under this section within
the 30-day period following the effective date of the order, he
is liable to a penalty of not more than $5,000 a day for each day
he continues to violate this section. The state may recover the
penalty by suit brought for that purpose in the district court of
Travis County.
(d) If the commission determines that the existing condition of
the dam is creating or will cause extensive or severe property
damage or economic loss to others or is posing an immediate and
serious threat to human life or health and that other procedures
available to the commission to remedy or prevent the occurrence
of the situation will result in unreasonable delay, the
commission may issue an emergency order, either mandatory or
prohibitory in nature, directing the owner of a dam to repair,
modify, maintain, dewater, or remove the dam which the commission
determines is unsafe. The emergency order may be issued without
notice to the dam owner or with notice the commission considers
practicable under the circumstances. The notice does not have to
comply with Chapter 2001, Government Code.
(e) If the commission issues an emergency order under authority
of this section without notice to the dam owner, the commission
shall fix a time and place for a hearing which shall be held as
soon as practicable to affirm, modify, or set aside the emergency
order. The notice does not have to comply with Chapter 2001,
Government Code. If the nature of the commission's action
requires further proceedings, those proceedings shall be
conducted as appropriate under the Administrative Procedure and
Texas Register Act, as amended (Article 6252-13a, Vernon's Texas
Civil Statutes).
(f) Nothing in this section or in rules or orders made by the
commission shall be construed to relieve an owner or operator of
a dam or reservoir of the legal duties, obligations, or
liabilities incident to ownership or operation.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1981, 67th Leg., p. 3150, ch. 828, Sec. 1,
eff. June 17, 1981; Acts 1985, 69th Leg., ch. 795, Sec. 1.033,
eff. Sept. 1, 1985; Acts 1995, 74th Leg., ch. 76, Sec. 5.95(63),
eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1010, Sec. 3.04,
eff. Sept. 1, 1997.
SUBCHAPTER D. WATER DISTRICTS
Sec. 12.081. CONTINUING RIGHT OF SUPERVISION OF DISTRICTS AND
AUTHORITIES CREATED UNDER ARTICLE III, SECTION 52 AND ARTICLE
XVI, SECTION 59 OF THE TEXAS CONSTITUTION. (a) The powers and
duties of all districts and authorities created under Article
III, Section 52 and Article XVI, Section 59 of the Texas
Constitution are subject to the continuing right of supervision
of the State of Texas by and through the commission or its
successor, and this supervision may include but is not limited to
the authority to:
(1) inquire into the competence, fitness, and reputation of the
officers and directors of any district or authority;
(2) require, on its own motion or on complaint by any person,
audits or other financial information, inspections, evaluations,
and engineering reports;
(3) issue subpoenas for witnesses to carry out its authority
under this subsection;
(4) institute investigations and hearings using examiners
appointed by the commission;
(5) issue rules necessary to supervise the districts and
authorities, except that such rules shall not apply to water
quality ordinances adopted by any river authority which meet or
exceed minimum requirements established by the commission; and
(6) the right of supervision granted herein shall not apply to
matters relating to electric utility operations.
(b) The commission shall prepare and submit to the governor,
lieutenant governor, and speaker of the house a report of any
findings made under this section.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.034, eff.
Sept. 1, 1985; Acts 1989, 71st Leg., ch. 196, Sec. 2, eff. Aug.
28, 1989; Acts 1995, 74th Leg., ch. 76, Sec. 11.283, eff. Sept.
1, 1995.
Sec. 12.082. DUTY TO INVESTIGATE FRESH WATER SUPPLY DISTRICT
PROJECTS. (a) In this section:
(1) "District" means fresh water supply district.
(2) "Designated agent" means any licensed engineer selected by
the executive director to perform the functions specified in this
section.
(b) The commission shall investigate and report on the
organization and feasibility of all districts created under
Chapter 53 of this code which issue bonds under the provisions of
that chapter.
(c) A district that wants to issue bonds for any purpose shall
submit to the commission a written application for investigation,
together with a copy of the engineer's report and a copy of the
data, profiles, maps, plans, and specifications made in
connection with the engineer's report.
(d) The executive director or his designated agent shall examine
the application and other information and shall visit the project
and carefully inspect it. The executive director or his
designated agent may ask for and shall be supplied with
additional data and information requisite to a reasonable and
careful investigation of the project and proposed improvements.
(e) The executive director or his designated agent shall file
with the commission written suggestions for changes and
improvements and shall furnish a copy of the suggestions to the
board of the district. If the commission finally approves or
refuses to approve the project or the issuance of bonds for the
improvements it shall make a full written report, file it in its
office, and furnish a copy of the report to the board of the
district.
(f) During the course of construction of the project and
improvements, no substantial alterations shall be made in the
plans and specifications without the approval of the executive
director. The executive director or his designated agent has full
authority to inspect the improvements at any time during
construction to determine if the project is being constructed in
accordance with approved plans and specifications.
(g) If the executive director finds that the project is not
being constructed in accordance with the approved plans and
specifications, the executive director immediately shall notify
in writing by certified mail each member of the board of the
district and its manager. If, within 10 days after the notice is
mailed, the board of the district does not take steps to insure
that the project is being constructed in accordance with the
approved plans and specifications, the executive director shall
give written notice of that fact to the attorney general.
(h) After the attorney general receives the notice, he may bring
an action for injunctive relief, or he may bring quo warranto
proceedings against the directors. Venue for either of these
actions is exclusively in the district of Travis County.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.035, eff.
Sept. 1, 1985.
Sec. 12.083. DISTRICTS; CREATION, INVESTIGATIONS AND BONDS. (a)
The commission succeeds to the duties and responsibilities of
the Texas Water Rights Commission with regard to the creation of
districts as defined by Section 50.001(1) of this code and to
approve or disapprove the issuance of the bonds of all such
districts.
(b) The executive director shall investigate and report on the
organization and feasibility of all districts as defined by
Section 50.001(1) of this code.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977.
SUBCHAPTER E. FEES
Sec. 12.112. FEES: EXEMPTIONS. (a) The commission, the board,
and the Parks and Wildlife Commission are exempted from payment
of any filing, recording, or use fees required by this code.
(b) The board is exempt from payment of any other fees required
by this code or any other statute relating to applications for
water rights or amendments thereto or relating to water resources
administration to the extent the board has not contracted for the
sale of water under a water right on which such fees are based.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.036, eff.
Sept. 1, 1985; Acts 1993, 73rd Leg., ch. 647, Sec. 4, eff. Aug.
30, 1993.
Sec. 12.113. DISPOSITION OF FEES, ETC. (a) The commission
shall immediately deposit in the State Treasury the fees and
charges it collects.
(b) The commission shall deposit all costs collected under
Subchapter G, Chapter 11 of this code in the State Treasury to
the credit of the watermaster administration account, from which
the commission shall pay all expenses necessary to efficiently
administer and perform the duties described in Sections 11.325
through 11.335 of this code.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.036, eff.
Sept. 1, 1985; Acts 1997, 75th Leg., ch. 333, Sec. 4, eff. Sept.
1, 1997.
Sec. 12.114. DISPOSITION OF FEES PENDING DETERMINATION. The
commission shall hold all fees, except filing fees, which are
paid with an application until the commission finally determines
whether the application should be granted. If the application is
not granted, the commission shall return the fees to the
applicant.
Amended by Acts 1977, 65th Leg., p. 2207, ch. 870, Sec. 1, eff.
Sept. 1, 1977; Acts 1985, 69th Leg., ch. 795, Sec. 1.036, eff.
Sept. 1, 1985.